UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460



### JAN 

### 19 2OlO

THE ADMINISTHATOR

Mr. Colin O'Brien Natural Resources Defense Council 1200New York Avenue, N.W., Suite400 Washington, D.C. 20005

Dear Mr. O'Brien:

Thepurpose ofthis letter is to respond to the Petition for Reconsideration and request for
a stay on behalf ofthe Natural Resources Defense Council and Sierra Club ("Petitioners") concerning the U.S. Environmental Protection Agency's final rule entitled "Approval and Promulgation ofAir Quality Implementation Plans; Wisconsin; NSR Reform regulation^,'^ published in the

### FederalRegister onDecember 17,2008.' EPA has carefully reviewed the points raised in the Petition and the request to stay the rule pending reconsideration and ultimately withdraw and abandon the final rule. For the reasons discussed below, the Petition for Reconsideration is respectfully denied.
Please note that although the Petition for Reconsideration cites CAA 307(d)(7)(B) asthe basis for the Petition, theprovisions of CAA 307(d) apply only to those actions enumerated in CAA 307(d)(l). The action at issue in the Petition is neither listed under CAA 307(d)(l) nor determined to be subject to CAA 307(d) by EPA under CAA 307(d)(l)(V). Accordingly, EPA does not believe the Petition is properly brought under CAA 307(d)(7)(B). Instead, we believe the appropriate basis for the Petition is the general Administrative Procedure Act provision that permits interested parties to "petition for the issuance, amendment or repeal of a rule." 5 USC 553(e). As a result, EPA is responding to the Petition as though it is based on this APA provision.

Unlike CAA 307(d)(7)(B), the APA does not provide a standard for when reconsideration is appropriate.2 Previously, the SupremeCourt explained that a question concerning 

# ' Hereinafter referred to in this letter as "Petition for Reconsideration" or "Petition".

Under CAA 307(d)(7)(B), EPA shall convene a proceeding for reconsideration if 

### (1) the person seeking reconsideration can demonstrate that it was impracticable to raise the objection supporting the request for reconsideration during the commentperiod, or ifthe grounds for the objection arose after the comment period, and (2) the objection isof central relevance to the outcome ofthe rule.

InternalAddress (URL) http://www.epa.gov ReeyelecVRecyclable Printedwith VegetableOil BasedInkson 100%Postconsumer.ProcessChlorine Free RecycledPaperadministrative reconsideration involves two opposing policies: (1) "the desirability of finality," and (2) the public interest in reaching the right result. 

### Civil Aeronautics Board v.

### DeltaAir Lines, Inc., 367U.S. 316,321 (1961). It is with this case law in mind-thatEPA reviewed the Petition for Reconsideration.



### Issues Raised by 

### Petition



### I. Procedural Issues

ThePetition requests reconsideration of several aspects ofthe final rule because EPA did not discuss at proposal certain informationpresented in EPA's response to comments at final promulgation. In particular, EPA's proposal did not discuss: 

### (I)the analysis addressing the effect of the decision in

### New York

### v. EPA, 413 F.3d 3 (D.C. Cir. 2005)' vacating two provisions ofthe final rule and remanding a third; and (2)-the2003 Power Point presentation given by Wisconsin Department ofNatural Resources concluding that the regulations would increase emissions within the state (hereinafter "2003 Presentation"). The Petition maintains that failing to address this information at proposal, as opposed to atpromulgation in the response to comments, violates section 307(d). The Petition also objects toEPA's use ofthis information to conclude that the final rule does not violate the anti-backsliding provision contained in section 193. 73 Fed. Reg. 76,56511-2.

EPA respectfully disagrees that its responses were improper or warrant reconsideration. Regarding WDNR's 2003 Presentation, EPA's response referenced a WDNR 2006 follow-up report to the Wisconsin legislatureon

### Incorporation ofFederal Changes to the Air Permitting Program (hereinafter "2006 Report to Legislature"), which negated the conclusionexpressed in the 2003 Presentation. We believe it was reasonable to rely on the 2006 Report to Legislature in the response to comments to address the 2003 Presentation because the 2006 Report was publicly available.
~egardin~ the

### New Yorkdecision, EPAYs response relied on the supplemental environmental analysis supporting the 2002 reform rules, which contained information sufficient to address the removal of the vacated components ofthose rules. EPAreviewed this aspect in response to the Petitioners' comments and found that the SEA'S overall findings and conclusions remained unchanged. Also, to further explore the assertions in the comments, we applied the SEA methodology to readily available information on the numbers and kinds of sources permitted in Wisconsin to quantify the effects ofWisconsin's SIP changes. An assessment ofthe Wisconsin's permitting data using the SEA methodology did not alter the findings and conclusions ofthe SEA. Finally, since the results ofEPA's SEA analysis were specifically intended to respond to comments and were made available at the time ofthe final rulemaking, EPA believes its analysis wasboth responsive and timely.

It is my understanding that EPA is not required to reopen the public commentprocess for the purpose of allowing opportunity for rebuttal of its responses to public comments. This is especially so in this instance where no substantive changes were made to the rule in response to public comments. Finally, regarding section 193,we note that the final rule reflects what EPAinitially proposed. The information and arguments introduced into the record and the preamble to the final rule are based upon previously available information and arose in response to public comments. For these reasons, EPA believes that the description ofthe basis for the final rule provided atproposal was sufficientto allow consideration ofthe issues raised, and reconsideration is not warranted.

2. 

### Substantive 

### Issues

In addition to the procedural concerns noted above, the Petition maintains that the final rule causes Wisconsin's revised StateImplementation Plan to "interfere with applicable requirement[s] concerning attainment and reasonable further progress" 42 U.S.C. 7410(1), notwithstanding EPA's determination to the contrary. 73 Fed. Reg. 76,56511. ThePetition asserts that EPA's determination is flawed because it primarily rests onthe Agency's finding that Wisconsin's provisions are consistent with the parallel ones found in the Agency's 2002 final rule. The Petition disputes this finding because the 

### 2003 Presentation concluded that the changes would likely increase air pollution from new or modified air-pollution sources. Also, the Petition noted that 

### EPA misconstrued the 

### 2006 Report to Legislature that acknowledges that WDIVRYs 2003 Presentation "did not examine other changes that might occur at a facility that could reduce allowable emissions, such as a plant-wide applicability limit." For these reasons the Petition contends that EPA cannot make a finding that revising Wisconsin's permit provisions that track the non vacated provisions ofthe 2002 rule "would not interfere with attainment or other applicable requirements," 70Fed. Reg. at 36,90313.The Petition therefore concludes that Wisconsin's final rule violates section 1 lO(1) ofthe Act and the section 

### 193ban on "backsliding" in nonattainment areas.

In assessing the changes to the Wisconsin 

### SIPto implement the 

### NSR Refonn regulations,
asnoted previously, EPA applied the SEA methodology to the specifics of Wisconsin's permits program and concluded that reasonable hrtherprogress would not be hindered and the ban on "backsliding," if applicable3, would not be violated. EPA's analysis applying the SEA, to the conditions in Wisconsin indicated a modest, but positive, impact resulting primarily from the addition ofplant-wide applicability limits. EPA's experience has pointed to improvements in overall control when such limits are implemented. The information in the record indicates that categories of sources commonly permitted in Wisconsin can benefit from implementing plantwide limits, which will provide improved air quality, albeit in a modest amount. The Petition notes that use ofthese limits isvoluntary. However, EPA believes that sources have the' incentiveto use plant-wide limits and that the SEA approach derives from real-world experience with their application. EPA also noted that the 2006 Report to Legislature included information that adoption ofchanges to the Michigan SIP mirroring those approved forWisconsin did not result in any ofthe negative outcomes raised in the Petition.

Our notice approving the SIP change also concluded that, because ofthe date referenced in the quoted section ofthe Act, section 193isnot applicable.

### It should be noted, even ifEPA's analyses showed the Wisconsin SIP changes to be neutral in their effect on RFP, such an outcome would have been sufficient under the Act for EPA's approval. Based on the studies and analyses undertaken thus far, we continue to expect modest benefits to result following Wisconsin's implementation ofthe federal New Source Review reform provisions. Thus, we believe our action is consistent with sections 

### 11 O(1) and 

### 193of the Act. Having considered the arguments with respect to each ofthe provisions for which the Petition requests reconsideration, EPA concludes that reconsideration is not appropriate because it is desirable to finalizethe Wisconsin NSR Reform regulations as 

### part ofWisconsin's State Implementation Plan. Moreover, EPA duly considered and determined that thethree NSR Reform regulations at issue taken together will not interfere with applicable requirements concerning attainment and reasonable fbrtherprogress in Wisconsin. For thereasons stated previously in support ofthe rule and, as explained further in this letter, EPA respectfully denies the Petition for Reconsideration and request for a stay.



### I thank you for raising these issues and appreciate your comments and interest in this important matter. Sincerely,

Lisa P.Jackson